Australian legislative responses to stalking

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Page 1

AUSTRALIAN LEGISLATIVE RESPONSES TO

STALKING

Dr Gregor Urbas

Australian Institute of Criminology

Paper presented at the Stalking: Criminal Justice Responses Conference

convened by the Australian Institute of Criminology

and held in Sydney 7-8 December 2000

Page 2

Abstract

Each Australian State and Territory has its own stalking laws. Even though these have been in

operation for only a relatively short time, several jurisdictions have already found it necessary to

amend their legislation following criticisms by prosecutors, judges and victims’ groups. This paper

compares the distinctive features of the various legislative approaches and assesses prospects for

convergence in the light of these amendments.

Page 3

Original Stalking Legislation

Legislation containing criminal provisions specifically directed at “stalking” or similar

“harassment” behaviour is relatively recent. California led the way by introducing a criminal

offence and a civil tort of stalking in 1990. By 1993, almost all state legislatures in the United

States had followed. Canada similarly amended its Criminal Code in 1993, though avoiding the

term “stalking” in favour of “criminal harassment”.

In Australia, Queensland was the first jurisdiction to follow to introduce a similar offence of

“unlawful stalking” into its Criminal Code in late 1993. Other Australian States and Territories

progressively introduced their own stalking legislation over the next three years.

Finally, the United Kingdom enacted the Protection from Harassment Act in 1997, which together

with the Malicious Communications Act 1988 prohibits a wide range of behaviour designated as

“harassment”.

Table 1: Original Stalking Legislation

1990

California

Penal Code §646.9 (Offence)

Civil Code §1708.7 (Tort)

1990

– 93

Other US States

Various

1993

Canada

Criminal Code

s264 (Criminal Harassment)

1993

Queensland

Criminal Code Act 1899

s359A (Unlawful Stalking)

s359B (Summary Proceedings)

1994

New South

Wales

Crimes Act 1900

s562A (Definitions)

s562AB (Stalking etc)

s562BC (Order prohibits stalking etc)

1994

Victoria

Crimes Act 1958

s21A (Stalking)

1994

Northern

Territory

Criminal Code

s189 (Unlawful stalking)

1994

South Australia

Criminal Law Consolidation Act 1935

s19AA (Unlawful stalking)

1994

Western

Australia

Criminal Code Act Compilation Act 1913 Chapter

XXXIIIB – Intimidation:

s338D (Unlawful stalking)

s338E (Meaning of terms)

1995

Tasmania

Criminal Code Act 1924

s192 (Stalking)

1996

Australian

Capital Territory

Crimes Act 1900

s34A (Stalking etc)

1997

United Kingdom

Protection from Harassment Act 1997

Malicious Communications Act 1988

Page 4

Amendments to Stalking Legislation

Over the few years since the introduction of stalking offences in Australia, a considerable number of

amendments have been made. Some of these amendments are minor, while others (as in Queensland)

have substantially reformulated the offence requirements defining “stalking” as a crime.

Table 2: Amendments to Stalking Legislation

1997

Victoria

Sentencing and Other Acts (Amendment) Act 1997

[Increased penalty for stalking]

1998

Western

Australia

Criminal Law Amendment Act (No.1) 1998 Part 2

[commenced 23.10.1998]

s338D (Interpretation)

s338E (Stalking)

1999

Queensland

Criminal Code (Stalking) Amendment Act 1999

[commenced 30.4.1999] inserted:-

Chapter 33A (Unlawful Stalking):

s359A (Definitions)

s359B (What is unlawful stalking)

s359C (What is immaterial for unlawful stalking)

s359D (Particular conduct that is not unlawful stalking)

s359E (Punishment of unlawful stalking)

s359F (Court may restrain unlawful stalking)

1999

Tasmania

Criminal Code Amendment (Stalking) Act 1999

[commenced 24.11.1999]

inserted ss192(2) (Objective intention) and ss192(3)

(Exemptions)

Justices Amendment Act 1999 [commenced 16.7.1999]

removed automatic anti-stalking conditions from restraint

orders

Proposed Amendments to Stalking Legislation

A few very recent amendments or proposed amendments are yet to come into force. In December

2000, for example, the Australian Capital Territory Legislative Assembly passed legislation

amending the offence requirements of stalking under the Crimes Act 1900 (ACT).

Table 3: Proposed Amendments to Stalking Legislation

2000

Western

Australia

Criminal Code Amendment Bill (No.2) 2000

Reading 19.9.2000]

Restrictions on publication of legal proceedings to extend

to stalking victims

2000

Australian

Capital

Territory

Crimes Amendment Bill 2000 (No.2)

[presented 18.10.2000; passed 5.12.2000]

Amends “intent” and “serious harm” requirements in

s34A

Page 5

Finally, a development which awaits is a legislatively prescribed review of the part of the Crimes

Act 1900 (NSW) containing the New South Wales stalking provisions.

2001

New South

Wales

Crimes Act 1900, s562Z [inserted with 1999 amendments]

requires Minister to review operation of Part 15AA (which

contains stalking provision s562AB) as soon as possible

following a period of 2 years after commencement [i.e.

12.6.2001]

Specific Changes

In order to assess whether recent legislative changes are making the law on stalking more consistent

across Australian jurisdictions, it is useful to concentrate on a small number of specific changes in

offence requirements. These also illustrate the motivations behind legislative reform.

(i)

Type Of Harm Feared

[NSW]

Original NSW stalking provisions required proof of an intention to cause a person to fear “personal

injury”.

Amendments (1999) changed this to an intention to cause the other person to fear “physical or

mental harm” – including “physical or mental harm to another person with whom he or she has a

domestic relationship”.

The Police Minister, Mr Whelan, explained the amendments thus (NSW Hansard, Legislative

Assembly, 18 November 1999, pp.3482-83):

“The new section provides that it is an offence to stalk or intimidate a person with the intention

of causing that person to fear physical or mental harm.

This recognises that many stalkers do not necessarily seek to arouse a fear of personal injury;

often the purpose of a stalking campaign is to maintain control over an ex-partner, or inflict

psychological damage. Stalking may nevertheless have a devastating effect on the person who is

stalked.

New section 562AB reflects the reality of stalking and will make prosecutions for stalking or

intimidation offences less burdensome.”

Comment: This amendment brings New South Wales into line with other Australian jurisdictions,

all of which envisage a broader notion of “harm” which includes mental as well as physical harm.

Page 6

(ii)

Seriousness Of Harm

[ACT]

Current ACT legislation requires proof of intent to cause:

(a) “apprehension or fear of serious harm” or

(b) “serious harm”

to the person stalked or to another person.

Recently passed (2000) amendments would reduce the requirement from “serious harm” to “harm”.

Chief Minister Gary Humphries explained the changes thus (Press Release, “Government to close

stalking law loophole”, 23 October 2000):

“Under the legislation as it stands, only a small handful of suspects have been successfully

prosecuted, and only after, in most cases, they pleaded guilty to the charges. That’s clearly

inadequate.

We also propose to remove the requirement for the threat of ‘serious harm’, as this sets an

unnecessarily high bar. Causing harm, or the threat of harm, should be enough.”

The amendments were passed on 5 December 2000 without debate (Chief Minister Gary

Humphries, Press Release, “Stalking law loophole closed”, 5 December 2000).

Comment: This amendment brings the ACT into line with almost all other jurisdictions, as none

(except for South Australia) require an intent to cause “serious” harm to the stalked person or to a

third person.

(iii)

Objective Test of Intention

[TAS]

• Amendments (in 1999) to the Tasmanian stalking provisions provide that a person engaged in

stalking activity is taken to have the required intention –

“if that person knows, or ought to have known, that engaging in that conduct would or would be

likely to cause the other person physical or mental harm, apprehension or fear”.

Mr Parkinson, Government Deputy Leader, explained the amendment thus (Legislative Council

Hansard, 27 October 1999, pp.1-2):

“In a recent decision in the Burnie Magistrates Court relating to behaviour which had occurred

over a period of eighteen months and which had caused apprehension and fear, the magistrate

dismissed the complaint on the basis that the defendant denied the intention. The proposed

amendment adds an objective test making it sufficient to show that the defendant ought to have

known that such conduct would induce physical or mental harm, apprehension or fear.

On this basis, the insistence by the defendant that he loved the victim and would never hurt her

would not serve as a defence to prosecution … ”.

Comment: In introducing an “objective” test of intention, the Tasmanian legislature has joined a

number of other jurisdictions (ACT, Victoria and Queensland) which have incorporated a similarly

objective component into their stalking provisions.

Page 7

(iv)

Awareness in the Victim

[QLD]

• Before amendment (1999), Queensland legislation required both that –

(a) the victim was aware that the conduct was directed at the victim; and

(b) the stalker intended the victim to be aware that the conduct was directed at the victim.

• Now the legislation requires only that the conduct “would cause the stalked person

apprehension or fear, reasonably arising in all the circumstances”.

Explanatory Notes to the amending legislation in Queensland describe the prior situation thus:

“The victim had to be aware that the course of conduct was directed at him or her. If the

person at whom the stalking conduct was directed was not aware of the conduct but the conduct

caused detriment to another person it was not considered to be stalking.

…

Therefore, unless the victim had an actual belief that a violent act was likely to happen, the

offence could not be proved.”

Comment: The removal of the requirement that the victim of stalking had to be aware of the

behaviour in order for the offence to be committed brings Queensland into line with almost all other

jurisdictions (except Victoria). Arguably, however, the effect of this and associated amendments is

to make the Queensland provisions very broad indeed, so that the only mental requirement of the

offence is that the stalking conduct be “directed at a person”.

Prospects for Unification

The preceding analysis shows that recent legislative amendments to the stalking provisions of

several Australian jurisdictions brings them somewhat closer towards provisions enacted by

remaining jurisdictions. However, the prospects for convergence based solely on such amendments

are limited, in the absence of a unifying model towards which all jurisdictions can aim. Such a

model is to be found in the work of the Model Criminal Code Officers Committee (MCCOC),

which in a series of reports over the last decade has produced substantial parts of a Model Criminal

Code involving contributions from all jurisdictions – the Commonwealth, States and Territories.

Among many other subjects, the Model Code Committee has also considered stalking.

• The Model Criminal Code Officers Committee’s Report (October 1998) entitled Non-fatal

Offences Against the Person defined ‘stalking’ roughly along the lines of the South Australian

provisions, but including as the “fault element”:

(a) intention of causing harm to the stalked person or another person;

(b) intention of causing fear of harm to the stalked person or another person

• This definition was later included in the Model Domestic Violence Laws Report (April 1999).

Page 8

In arriving at this formulation, the Committee considered the advantages and disadvantages of

various State anti-stalking provisions, noting (pp.53, 57):

“These laws are very hard to draft”

“There is general agreement in Australia that some kind of offence is needed to deal with this

kind of behaviour … [I]t is quite evident that the public demands the creation of such an offence

and legislators are willing to respond. The problem lies in defining its acceptable range”.

Specific Issues (MCCOC)

ISSUE (i):

Type of Harm Feared

The Model Criminal Code Officers Committee’s 1998 Report included the following definition of

‘harm’ (5.1.1):

(1) In this Part, harm means physical harm or harm to a person’s mental health, whether

temporary or permanent.

(2) …

(3) Harm to a person’s mental health includes significant psychological harm, but does not

include mere ordinary emotional reactions such as those of only distress, grief, fear or

anger.

ISSUE (ii):

Seriousness of Harm

“There was a considerable consensus that stalking should extend to the causing of non-serious

harms. The Committee agreed to this measure, but only on the assumption that the current

protection in terms of fault requirement – that is, intention – remains.

If that is not so, then the offence will extend too far into making a serious and stigmatising offence

of very minor nuisance – if really nuisance at all.” [p.61]

ISSUE (iii):

Objective Test of Intention

“[I]t is apparent that many supporters of anti-stalking offences are clearly and avowedly supportive

of attaching criminal sanctions to any conduct at all which might be described as harassment,

intentional or not, and whether it causes any harm or not.”

[p.57]

“If the fault element of the offence is to be extended beyond intention, other, strict and defensible

limits on this very broad offence must be found. So far, no-one has been able to do so. The

Committee therefore retains the intention requirement.”

[p.61]

Page 9

ISSUE (iv):

Awareness in the Victim

The Model Criminal Code Officers Committee’s 1998 Report included a provision (5.1.23) stating:

“In the prosecution of an offence under this Division it is not necessary to prove that the person

threatened or stalked actually feared that the threat would be carried out or that the person or any

other person would be harmed.”

[p.52]

Comment: On all of the selected issues except for the question of objective intention requirements

(Issue (iii)), the Model Criminal Code Officers Committee takes a position broadly in line with that

of most Australian jurisdictions, and towards which there is already evidence of convergence.

On the question of intention, it remains to be seen whether those jurisdictions which incorporate

some form of objective intention in their offence provisions will be able to satisfy the Committee’s

call for “strict and defensible limits on this very broad offence”.

Conclusion

Prospects for convergence of Australian stalking laws are considerably improved following recent

amendments by a number of jurisdictions. However, more significant movement towards

unification will require wider acceptance of the model proposed by the Model Criminal Code

Officers Committee (MCCOC). The greatest impediment at present is unresolved divergence over

the degree to which stalking laws can allow for an objective test of intention without thereby

becoming overly broad.

Page 10

Appendix: Australian Stalking Offences [current December 2000]

AUSTRALIAN CAPITAL TERRITORY: Crimes Act 1900, s34A

34A Stalking etc

(1) A person shall not stalk another person with intent to cause:

(a) apprehension or fear of serious harm in the other person or a third person; or

(b) serious harm to the other person or a third person.

Penalty:

(a) where—

(i) the offence involved a contravention of an injunction or other order made by a court;

(ii) the offender was in possession of an offensive weapon; imprisonment for 5 years;

and

(b) in any other case—imprisonment for 2 years.

(2) For the purposes of subsection (1), a person shall be taken to stalk another person if, on at least 2

occasions, he or she:

(a) follows or approaches the other person; or

(b) loiters near, watches, approaches or enters a place where the other person resides, works

or visits; or

(d) interferes with property in the possession of the other person; or

(e) gives or sends offensive material to the other person or leaves offensive material where it

is likely to be found by, given to or brought to the attention of, the other person; or

(f) telephones or otherwise contacts the other person; or

(g) acts covertly in a manner that could reasonably be expected to arouse apprehension or fear

in the other person; or

(h) engages in conduct amounting to intimidation, harassment or molestation of the other

person.

(3) In a prosecution for an offence under subsection (1), it is not necessary to prove that the person

stalked or a third person, as the case may be, apprehended or feared serious harm.

(4) In this section:

harm means physical harm, harm to mental health, or disease, whether permanent or temporary.

harm to mental health includes psychological harm.

physical harm includes unconsciousness, pain, disfigurement and any physical contact that might

reasonably be objected to in the circumstances, whether or not there was an awareness of that

contact at the time.

Page 11

NEW SOUTH WALES: Crimes Act 1900, ss562A, 562AB, 562BC

562A Definitions

In this Part:

…

intimidation means:

(a) conduct amounting to harassment or molestation, or

(b) the making of repeated telephone calls, or

whom he or she has a domestic relationship, or of violence or damage to any person or

property.

stalking means the following of a person about or the watching or frequenting of the vicinity of or

an approach to a person's place of residence, business or work or any place that a person frequents

for the purposes of any social or leisure activity.

562AB Stalking or intimidation with intent to cause fear of physical or mental harm

(1) A person who stalks or intimidates another person with the intention of causing the other person

to fear physical or mental harm is liable to imprisonment for 5 years, or to a fine of 50 penalty units,

or both.

(2) For the purposes of this section, causing a person to fear physical or mental harm includes

causing the person to fear physical or mental harm to another person with whom he or she has a

domestic relationship.

(3) For the purposes of this section, a person intends to cause fear of physical or mental harm if he

or she knows that the conduct is likely to cause fear in the other person.

(4) For the purposes of this section, the prosecution is not required to prove that the person alleged

to have been stalked or intimidated actually feared physical or mental harm.

562BC Order prohibits stalking, intimidation etc

Unless otherwise ordered, every order is taken to specify that the defendant is prohibited from doing

any of the following:

(a) engaging in conduct that intimidates the protected person or a person with whom he or

she has a domestic relationship,

(b) stalking the protected person.

Page 12

NORTHERN TERRITORY: Criminal Code, s189

189. Unlawful Stalking

(1) A person stalks another person if, on at least 2 separate occasions -

(a) the person -

(i)

follows the other person;

(ii)

loiters outside or enters the place of residence or employment of the other person or

some other place frequented by the other person;

(iii)

interferes with property (whether or not the person has an interest in the property) in

the possession of the other person;

(iv)

keeps the other person under surveillance; or

(v)

acts covertly in a way that could reasonably be expected to arouse the other person's

apprehension or fear; and

(b) the person intends to cause -

(i)

physical or mental harm to the other person or a third person; or

(ii)

apprehension or fear.

(2) A person who stalks another person is guilty of an offence and is liable -

(a) to imprisonment for 2 years; or

(b) where -

(i)

the person's conduct contravened a condition of bail or an injunction or order imposed

by a court (either under a law of the Commonwealth, the Territory, a State or another

Territory of the Commonwealth); or

(ii)

the person was, on any occasion to which the charge relates, in the possession of an

offensive weapon, to imprisonment for 5 years.

Page 13

QUEENSLAND: Criminal Code Act 1899, CHAPTER 33A—UNLAWFUL STALKING, ss359A

– 359F

Chapter 33a—Unlawful Stalking

Definitions for ch 33A

359A. In this chapter—

“circumstances” means the following circumstances—

(a) the alleged stalker’s circumstances;

(b) the circumstances of the stalked person known, foreseen or reasonably foreseeable by the

alleged stalker;

(d) any other relevant circumstances.

“detriment” includes the following—

(a) apprehension or fear of violence to, or against property of, the stalked person or another

person;

(b) serious mental, psychological or emotional harm;

(d) compulsion to do an act a person is lawfully entitled to abstain from doing.

Examples of paragraph (c)—

A person no longer walks outside the person’s place of residence or employment.

A person significantly changes the route or form of transport the person would ordinarily use to

travel to work or other places.

Example of paragraph (d)—

A person sells a property the person would not otherwise sell.

“property”, of a person, means—

(a) property in which the person has an interest,

whether or not the defendant also has an

interest in the property; or

(b) property that is otherwise:

(i)

used and enjoyed by the person; or

(ii)

available for the person’s use or enjoyment; or

(iii) in the person’s care or custody; or

(iv)

at the premises at which the person is residing.

“stalked person” see section 359B.

“unlawful stalking” see section 359B.

“violence”

(a) does not include any force or impact within the limits of what is acceptable as incidental

to social interaction or to life in the community; and

(b) against a person includes an act depriving a person of liberty; and

with the property.

Page 14

What is unlawful stalking

359B. “Unlawful stalking” is conduct:

(a) intentionally directed at a person (the “stalked person”); and

(b) engaged in on any 1 occasion if the conduct is protracted or on more than 1 occasion; and

(i)

following, loitering near, watching or approaching a person;

(ii)

contacting a person in any way, including, for example, by telephone, mail, fax,

e-mail or through the use of any technology;

(iii) loitering near, watching, approaching or entering a place where a person lives,

works or visits;

(iv)

leaving offensive material where it will be found by, given to or brought to the

attention of, a person;

(v)

giving offensive material to a person, directly or indirectly;

(vi)

an intimidating, harassing or threatening act against a person, whether or not

involving violence or a threat of violence;

(vii) an act of violence, or a threat of violence, against, or against property of, anyone,

including the defendant; and

(d) that—

(i)

would cause the stalked person apprehension or fear, reasonably arising in all the

circumstances, of violence to, or against property of, the stalked person or another

person; or

(ii)

causes detriment, reasonably arising in all the circumstances, to the stalked person

or another person.

What is immaterial for unlawful stalking

359C.

(1) For section 359B(a), it is immaterial whether the person doing the unlawful stalking—

(a) intends that the stalked person be aware the conduct is directed at the stalked person; or

(b) has a mistaken belief about the identity of the person at whom the conduct is intentionally

directed.

(2) For section 359B(a) and (c), it is immaterial whether the conduct directed at the stalked person

consists of conduct carried out in relation to another person or property of another person.

(3) For section 359B(b), it is immaterial whether the conduct throughout the occasion on which the

conduct is protracted, or the conduct on each of a number of occasions, consists of the same or

different acts.

(4) For section 359B(d), it is immaterial whether the person doing the unlawful stalking intended to

cause the apprehension or fear, or the detriment, mentioned in the section.

(5) For section 359B(d)(i), it is immaterial whether the apprehension or fear, or the violence,

mentioned in the section is actually caused.

Particular conduct that is not unlawful stalking

359D. “Unlawful stalking” does not include the following acts—

(a) acts done in the execution of a law or administration of an Act or for a purpose authorised

by an Act;

(b) acts done for the purposes of a genuine industrial dispute;

carried on in the public interest;

(d) reasonable conduct engaged in by a person for the person’s lawful trade, business or

occupation;

Page 15

(e) reasonable conduct engaged in by a person to obtain or give information that the person

has a legitimate interest in obtaining or giving.

Punishment of unlawful stalking

359E.

(1) A person who unlawfully stalks another person is guilty of a crime.

(2) A person who commits the crime of unlawful stalking is liable to a maximum penalty of

imprisonment for 5 years.

(3) However, a person is liable to a maximum penalty of imprisonment for 7 years if, for any of the

acts constituting the unlawful stalking, the person—

(a) uses or intentionally threatens to use, violence against anyone or anyone’s property; or

(b) possesses a weapon within the meaning of the Weapons Act 1990; or

made by a court or tribunal under a law of the Commonwealth or a State.

Court may restrain unlawful stalking

359F.

(1) This section applies on the hearing before a court of a charge against a person of unlawful

stalking.

(2) Whether the person is found guilty or not guilty or the prosecution ends in another way, if the

presiding judge or magistrate considers it desirable, the judge or magistrate may constitute the court

to consider whether a restraining order should be made against the person.

(3) The judge or magistrate may act under subsection (2) on application by the Crown or an

interested person or on the judge’s or magistrate’s own initiative.

(4) Also, if the restraining order proceeding is started before the Supreme Court or the District

Court, the court may order the proceeding to be transferred to a Magistrates Court.

Page 16

SOUTH AUSTRALIA: Criminal Law Consolidation Act 1935, s19AA

19AA Unlawful stalking

19AA.

(1) A person stalks another if –

(a) on at least two separate occasions, the person:

(i)

follows the other person; or

(ii)

loiters outside the place of residence of the other person or some other place

frequented by the other person; or

(iii) enters or interferes with property in the possession of the other person; or

(iv)

gives offensive material to the other person, or leaves offensive material where it

will be found by, given to or brought to the attention of the other person; or

(v)

keeps the other person under surveillance; or

(vi)

acts in any other way that could reasonably be expected to arouse the other person's

apprehension or fear; and

(b) the person:

(i)

intends to cause serious physical or mental harm to the other person or a third

person; or

(ii)

intends to cause serious apprehension or fear.

(2) A person who stalks another is guilty of an offence.

Penalty:

(a) if:

(i)

the offender's conduct contravened an injunction or an order imposed by a court

(either under a law of the State or the Commonwealth); or

(ii)

the offender was, on any occasion to which the charge relates, in possession of an

offensive weapon,

imprisonment for not more than 5 years;

(b) in any other case - imprisonment for not more than 3 years.

(3) A person who is charged with stalking is (subject to any exclusion in the instrument of charge)

to be taken to have been charged in the alternative with offensive behaviour so that if the court is

not satisfied that the charge of stalking has been established but is satisfied that the charge of

offensive behaviour has been established, the court may convict the person of offensive behaviour.

(4) A person who has been acquitted or convicted on a charge of stalking may not be convicted of

another offence arising out of the same set of circumstances and involving a physical element that is

common to that charge.

(5) A person who has been acquitted or convicted on a charge of an offence other than stalking

may not be convicted of stalking if the charge of stalking arises out of the same set of circumstances

and involves a physical element that is common to the charge of that other offence.

Page 17

TASMANIA: Criminal Code, s192

Stalking

(1) A person is guilty of a crime if that person, with the intention of causing another person physical

or mental harm, apprehension or fear –

(a) follows the other person or a third person; or

(b) loiters outside the residence of the other person or a third person or another place

frequented by the other person or third person; or

(d) keeps the other person or a third person under surveillance; or

(e) gives offensive material to, or leaves offensive material where it is likely to be found by,

given to or brought to the attention of, the other person or a third person; or

(f) acts in any other way that could reasonably be expected to arouse the other person's

apprehension or fear.

Charge: Stalking.

(2) A person who engages in conduct of a kind referred to in subsection (1) and so causes physical

or mental harm, apprehension or fear in another person is taken to have the intention required by

subsection (1) if that person knows, or ought to have known, that engaging in that conduct would or

would be likely to cause the other person physical or mental harm, apprehension or fear.

(3) Subsection (2) does not apply in respect of a person who engages in conduct of a kind referred

to in subsection (1) in the course of performing his or her official duties for the purposes of -

(a) the enforcement of the criminal law; or

(b) the administration of an Act; or

(d) the execution of a warrant; or

(e) the protection of the public revenue.

TASMANIA: Justices Act 1959, s106B

Restraint orders

106B.

(1) Where on an application made under this section, justices are satisfied on the balance of

probabilities –

(d) that a person has stalked the person for whose benefit the application is made or a third

person the stalking of whom has caused the person for whose benefit the application is made

to feel apprehension or fear –

they may make an order imposing such restraints upon that person as are necessary or

desirable to prevent the person from acting in a manner specified in this subsection.

Page 18

VICTORIA:

Crimes Act 1958, s21A

21A. Stalking

(1) A person must not stalk another person.

Penalty: Level 5 imprisonment (10 years maximum).

(2) A person (the offender) stalks another person (the victim) if the offender engages in a course of

conduct which includes any of the following-

(a) following the victim or any other person;

(b) telephoning, sending electronic messages to, or otherwise contacting, the victim or any

other person;

or of business or any other place frequented by the victim or the other person;

(d) interfering with property in the victim's or any other person's possession (whether or not

the offender has an interest in the property);

(e) giving offensive material to the victim or any other person or leaving it where it will be

found by, given to or brought to the attention of, the victim or the other person;

(f) keeping the victim or any other person under surveillance;

(g) acting in any other way that could reasonably be expected to arouse apprehension or fear

in the victim for his or her own safety or that of any other person-

with the intention of causing physical or mental harm to the victim or of arousing apprehension or

fear in the victim for his or her own safety or that of any other person and the course of conduct

engaged in actually did have that result.

(3) For the purposes of this section an offender also has the intention to cause physical or mental

harm to the victim or to arouse apprehension or fear in the victim for his or her own safety or that of

any other person if that offender knows, or in all the particular circumstances that offender ought to

have understood, that engaging in a course of conduct of that kind would be likely to cause such

harm or arouse such apprehension or fear and it actually did have that result.

(4) This section does not apply to conduct engaged in by a person performing official duties for the

purpose of-

(a) the enforcement of the criminal law; or

(b) the administration of any Act; or

(d) the execution of a warrant; or

(e) the protection of the public revenue-

that, but for this sub-section, would constitute an offence against sub-section (1).

(5) Despite anything to the contrary in the Crimes (Family Violence) Act 1987, the Court within the

meaning of that Act may make an intervention order under that Act in respect of a person (the

defendant) if satisfied on the balance of probabilities that the defendant has stalked another person

and is likely to continue to do so or to do so again and for this purpose that Act has effect as if the

other person were a family member in relation to the defendant within the meaning of that Act if he

or she would not otherwise be so.

Page 19

WESTERN AUSTRALIA: Criminal Code Act Compilation Act 1913

CHAPTER XXXIIIB – INTIMIDATION, ss338D, 338E, 598AA

338D. Interpretation

(1) In this chapter –

“circumstances of aggravation” means circumstances in which –

(a) immediately before or during or immediately after the commission of the offence, the

offender is armed with any dangerous or offensive weapon or instrument or pretends to

be so armed; or

(b) the conduct of the offender in committing the offence constituted a breach of –

(i)

an order made or registered under the Restraining Orders Act 1997 or to which that

Act applies; or

(ii)

a condition on which bail has been granted to the offender;

“intimidate”, in relation to a person, includes –

(a) to cause physical or mental harm to the person;

(b) to cause apprehension or fear in the person;

hinder the person in doing such an act;

(d) to compel the person to do an act that the person is lawfully entitled to abstain from

doing;

“pursue”, in relation to a person, includes –

(a) to repeatedly communicate with the person, whether directly or indirectly and whether in

words or otherwise;

(b) to repeatedly follow the person;

(d) to watch or beset the place where the person lives or works or happens to be, or the

approaches to such a place;

(e) whether or not repeatedly, to do any of the foregoing in breach of a restraining order or

bail condition.

(2) For the purpose of deciding whether an accused person has pursued another person –

(a) the accused is not to be regarded as having communicated with or followed that person

on a particular occasion if it is proved by or on behalf of the accused that on that occasion

the accused did not intend to communicate with or follow that person;

(b) an act by the accused on a particular occasion is not to be taken into account for the

purpose of deciding whether the accused watched or beset a place where that person

lived, worked or happened to be, or the approaches to such a place, if it is proved by or

on behalf of the accused that on that occasion the accused did not know it was such a

place.

Page 20

338E. Stalking

(1) A person who pursues another person with intent to intimidate that person or a third person, is

guilty of a crime and is liable –

(a) where the offence is committed in circumstances of aggravation, to imprisonment for 8

years; and

(b) in any other case, to imprisonment for 3 years.

Summary conviction penalty:

(d) in a case to which paragraph (b) applies: Imprisonment for 18 months or a fine of $6000.

(2) A person who pursues another person in a manner that could reasonably be expected to

intimidate, and that does in fact intimidate, that person or a third person is guilty of a simple

offence.

Penalty: Imprisonment for 12 months or a fine of $4 000.

(3) It is a defence to a charge under this section to prove that the accused person acted with lawful

authority.

598AA. Stalking; alternative verdict

(1) Upon an indictment charging a person with an offence under section 338E(1) the person may be

convicted of a simple offence under section 338E(2).

(2) Where a charge under section 338E(1) is dealt with summarily the person charged may be

convicted summarily of an offence under section 338E(2).